Complainant

Respondent

Parties

Michael  Gavagan

Xerox (Ireland) Pension Scheme

Representatives

Aoife Malone

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00049166-001

11/03/2022

This dispute concerns a claim by Mr. Michael Gavagan that the Trustees of the Xerox (Ireland) Pension Scheme discriminated against him on the ground of disability in their assessment of his application for an ill- health early retirement pension entitlement and that he was harassed and victimised in the process.

The Complainant was made redundant by Xerox (Ireland) Limited on 23 June 2009. On 1 July 2009, he first raised with the Company the possibility of requesting early retirement and subsequently applied to the Trustees for an ill-health early retirement pension from the Scheme.

The Complainant lodged a complaint with the Pensions Ombudsman in May 2013 and a decision issued by the Pensions Ombudsman in   2015.

The matter of the Complainant’s pension was subject of an Adjudication Hearing which took place on 16 June 2017 (ADJ-00003251).  On foot of this hearing a Decision was issued on 3 November 2017. The Adjudication Officer decided that the complaint was out of time and that she had no jurisdiction to investigate the claim under the Pensions Acts.

The Complainant believes Determinations related to his pension, issued by the Data Protection Commission in June 2021, are sufficient to justify the re-opening of his complaint.

The Complainant lodged this complaint with the WRC on 11 March 2022.

The pension scheme is an occupational pension scheme within the meaning of the Pension Acts.

The Respondent provided a detailed written submission

The Respondent submits that the Complainant wishes to re-submit his previous complaint under section 81E of the Pensions Act. Section 81E provides that a person claiming not to be receiving equal pension treatment or to have been penalised in circumstances amounting to victimisation may refer the case to the Director General of the WRC. Section 81E(5) further provides as follows:

“Subject to subsection (6), a claim for redress in respect of a breach of the principle of equal pension treatment or victimisation may not be referred under this section after the end of the period of 6 months from the date of termination of relevant employment.

While subsection (6) of section 81E allows for an extension of up to 12 months from the date of termination of relevant employment, the Respondent submits that the Complainant’s employment with the Company terminated on his redundancy with effect from 23 June 2009.  As such, the maximum extension that could be granted to the Complainant under section 81E (6) is up to 23 June 2010.

The Respondent submits that section 81E (7) does facilitate a further possible extension to bring a complaint under this section. However, this will only apply where the delay in referring the case is due to any misrepresentation by the Respondent. It does not apply where new information comes to light.  Nor does it apply in circumstances where misrepresentations were made but those misrepresentations did not cause the delay in submitting the complaint.

The Respondent refers to WRC ADJ-00021265, A Retired Employee v A Local Council, where it was found that the WRC did not have jurisdiction to inquire into the complaint as it was brought outside the statutory time limit.

The Respondent submits that the WRC has already considered and determined that this complaint, when first brought before the WRC in 2016 was out of time (ADJ-00003251). The Adjudication Officer at that time noted that misrepresentation, as defined, required “the action or offence of giving a false or misleading account of the nature of something.” The Adjudication Officer further determined that none of the alleged misrepresentations that the Complainant sought to rely on at that time went to the substance of a complaint of discrimination or victimisation and as such justified the delay and prevented the Complainant from lodging his complaint to the WRC prior to 2016.  The Respondent submits that that position remains unchanged.

The Respondent categorically rejects the Complainant’s argument that the Data Commissioner’s Determination of June 2021 proves misrepresentation on the part of the Respondent. While the Respondent accepts that the determination did find certain breaches on the part of the Respondent in relation to data protection law, there is absolutely no evidence of misrepresentation on the part of the Respondent being, “the action or offence of giving a false or misleading account of the nature of something.”  Allied to this, the Respondent submits that even if the WRC were to find any misrepresentation had been made by the Respondent on foot of the determination of the Data Protection Commissioner, no such misrepresentation goes to the substance of a complaint of discrimination or victimisation and / or justifies the delay or prevented the Complainant referring this complaint to the WRC previously in which case Section 81E(&) should not be applied.

The Respondent submits that if Section 81E(&) were to be applied so as to enable the Complainant to take a complaint with effect from 25 June 2021 (the date of the Data Commissioner’s determination), the Respondent submits that his complaint should, in accordance with Section 81E(5), have been made to the WRC no later than 25 December 2021 and that no reasonable grounds for extending the period in which the Complaint should have been made pursuant to Section 81E(6) has been requested by the Complainant. The Respondent believes that the fact that the Complainant was curtailed from travel would not have prevented him from obtaining legal advice at the time.

At the hearing the representative for the Respondent put forward that of the two relevant findings in the Data Commission’s determinations, one did not apply to the Respondents but to the former employer and that the second was nothing to do with a misrepresentation. 

The Complainant provided a detailed written submission.

In his complaint form to the WRC the Complainant outlined the reasons he believes this case should be heard. The Complainant submits that a previous version of this complaint was before the WRC under Complaint Ref, CA-00004228 in 2016.  That complaint was rejected as being out of time (ADJ-00003251). The reason he resubmitted the complaint was because he received determinations from the Data Protection Commissioner, which confirm that the Respondent and his former employers breached Data Protection Law in the way they processed his medical reports. This new evidence only came into his possession on 25 June 2021.

The Complainant is hoping that the case to be re-heard pursuant to section 81E(7) of the Pensions Act, 1990, as amended by the Social Welfare (miscellaneous provisions) Acts 2004, which states, “(7) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5) shall be construed as if the reference in it to the date of termination of relevant employment were a reference to the date on which the fact of misrepresentation came to the complainant’s notice.”

The Complainant submits that as the Data Commission determinations were received by him on 25 June 2021, in order for him to “get past the 6 month time limit”, he requests that section 81E(6), which states, “On application by a complainant the Director, the Labour Court or the Circuit Court as the case may be, may for reasonable cause, direct that, in relation to the complaint, subsection (5) shall have effect as if the reference in it to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and where such a direction is given, this Part shall have effect accordingly”, be applied.

The complainant submits that the reason he did not submit his complaint to the WRC within the six-month period is that his ability to travel to get legal advice was severely curtailed by the Covid 19 pandemic, as he was categorised at the time as an “at risk” person. He was only able to obtain legal advice in February or March 2022.

At the hearing the Complainant gave evidence under Oath.

The Complainant stated that he had come back to the WRC for the case to be re-heard on the basis that he now had evidence of misrepresentation on behalf of the Respondent.  He stated that he had not been able get legal advice on the matter until late February or March 2022, due to having a serious medical condition. 

I have considered this matter carefully.

Having reviewed the determinations issued by the Data Commission referred to above I find they do not fall within the definition of misrepresentations as defined in Adj-00003251, nor do they go to the substance of a claim for discrimination or victimisation and could not be utilised to justify the delay in submitting this complaint.

Even if it was accepted that the alleged misrepresentations were misrepresentations, the Complainant was aware of them on 25June 2021 and should have lodged his complaint with the WRC by 25 December 2021. The Complainant relies on “reasonable cause” to allow for an extension to the six-month time limit for making a claim. He has argued that his state of health, his “at risk” categorisation, and the restrictions on travel connected to the Covid 19 pandemic prevented him from getting legal advice. No medical evidence was adduced to support this assertion.

As to what constitutes reasonable cause, the Labour Court in Cementation Skanska Ltd. V Tom Carroll, DWT 0388 stated “It is for the claimant to show that there are reasons which both explain the delay and afford an excuse from the delay. The explanation must be reasonable, that it is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and the circumstances known to the complainant at the material time. The claimant’s failure to present the claim within the six-month time limit must be due to the reasonable cause relied upon.”

In this case, I do not accept the reasons given by the Complainant are sufficient to justify a delay in making his complaint.   I have come to this conclusion for the following reasons:

Firstly, although the pandemic did restrict physical movement, there was no restriction on telephonic communications; the Complainant could easily have spoken with his legal advisor on the phone. 

Secondly, the Complainant was, at the relevant time, well versed in the requirements of lodging a complaint with the WRC, which are, in any case, simple and designed for use by the lay person. 

Thirdly, I note that the Complainant signified on the complainant form that he would not have legal representation at the hearing. This indicates to me that the Complainant was confident enough to pursue this case with little legal advice, the first step being the lodging of a complaint with the WRC.

The complaint is out of time.  I have no jurisdiction to investigate this claim under the Pensions Acts.

Pension, Out of Time.